Outlawed Opossums Lack Legal Protection

Threat or Threatened?
Threat or Threatened? | Photo: shannonkringen| Flickr: Creative Commons License

Opossums are outlaws, at least according to California statutes. An Anaheim case that required a $400,000 payout to end a wrongful arrest lawsuit hinged on the fact that opossums have no special protection as wildlife in California.

Under state law, opossums slip into the category of animals that can dispatched without a license and at any time.

In fact, you are apparently allowed to kill any non-game, fur-bearing animal that is injuring property "at any time and in any manner" in California. There is a contradiction in that blanket permission to kill by any means available, since the state's prohibition against animal cruelty forbids intentionally maiming or wounding to kill any animal. (In 2002, the Los Angeles Times looked at two earlier opossum cases that showed the contradictions in state law.)

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In 2008, Lorenzo Oliver and his son -- then 12 -- were arrested on charges of mistreating an opossum and held for several hours at the Anaheim police station. The Olivers sued, a case that ultimately reached the 9th Circuit appellate court after lower courts found in favor of the arresting officers.

The 9th Circuit overturned the lower courts and ruled that the Olivers' suit could go forward because, said Chief Judge Alex Kozinski. "A reasonable officer could not have believed that the arrests ... were lawful."

Anaheim settled with the Olivers rather than defend what the federal appellate court had determined to be unreasonable arrests.

Opossums have their defenders and rightfully so. They are harmless to humans, hardly represent a threat to property, and act beneficially to clean up the suburban "wilderness" of snails, insect pests, and fallen fruit. When cornered or startled, opossums defend themselves with a primitive fierceness that is mostly bluster. (I don't have a particular fondness for opossums, but they and I get along when they pass through my backyard from time to time.)

The state's wildlife managers are less willing to live and let live. In their view, opossums are notorious battlers with cats and dogs, inflicting serious injuries with their 50 sharp, pointed teeth. They come infested with fleas, ticks, mites, and lice. They also are implicated as carriers of leptospirosis, tuberculosis, relapsing fever, tularemia, spotted fever, toxoplasmosis, coccidiosis, trichomoniasis, and Chagas' disease.

"Dangerous to life, limb and property" under state law? Or hardy and mostly inoffensive survivor from before the Age of Mammals?

The 9th Circuit clouds the question, putting animal control officers and local police on notice that opossums have no presumptive right to life under California law and that an arrest or citation for animal cruelty in killing an opossum probably won't stand judicial review.

Opossum life in a state of nature in the backyards of California just got a lot harder.

D. J. Waldie, author and historian, writes about Los Angeles twice each week at KCET's SoCal Focus blog.

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